David A. Plymyer: Political, Social & Random Commentary

Baltimore police, prosecutor gaffes put cases in jeopardy.

As every viewer of “Law and Order” knows, the people are represented in the criminal justice system “by two separate but equally important groups” — the police and the prosecutors. On Sept. 2 the Maryland Court of Special Appeals overturned the conviction of Robert Harris for the murder of Teresa McLeod, his fiancée. The case illustrates how deeply troubled both parts of the criminal justice system are in Baltimore.

In 2012, a jury found Mr. Harris guilty in the murder-for-hire death of McLeod, who was shot six times with a Glock handgun in 1996. The conviction was reversed because the trial judge, at the urging of an assistant state’s attorney, refused to allow defense counsel to cross-examine former Baltimore City Police Det. Darryl Massey “about his prior misconduct in submitting falsified time sheets, as reported by the Baltimore City Police Department Internal Investigation Division (IID).” The appeals court held that Mr. Harris had the constitutional right to use the misconduct in order to try to impeach Detective Massey’s credibility before the jury.

This was the second time Mr. Harris had his murder conviction overturned. He was originally found guilty in McLeod’s death by a jury in April 1997, but the conviction was also reversed, that time because prosecutors failed to disclose sentencing leniency that was given to key prosecution witnesses, which could have been used by defense counsel as impeachment evidence.

Such procedural gaffes by the state’s attorney’s office continue today. In August, the office abruptly dropped charges against one of the top targets in a major dogfighting ring after a judge ruled that there had been “significant discovery violations” by the prosecution. And last month, a mistrial was declared in the case brought against Gregg Thomas, who was charged with shooting a Baltimore police sergeant, because prosecutors had failed to turn over to defense counsel ballistic evidence as required.

The Baltimore police department also has its share of problems, starkly evident in the way it handled the internal investigation regarding Detective Massey’s overtime reporting. It was an issue in the latest Harris case reversal and in the reversal of an unrelated 2010 murder case, in which a trial judge was found to have improperly granted a police department motion denying access to the internal investigatory file.

Detective Massey, whose base salary of $71,361 had doubled to $141,077 with overtime pay, had been placed under surveillance during an investigation of alleged overtime abuse within the Eastern District Detective Unit in 2006 and 2007. The surveillance disclosed that on five separate days Detective Massey submitted overtime slips for periods of time during which he was not working, and the IID “sustained” the allegations against him. Two years later, The Sun reported that the charges against Mr. Massey and other officers accused of overtime abuse were “dropped” by the BPD because of unspecified “administrative issues” (“Cases against police halted,” June 26, 2009), and Detective Massey’s file was administratively closed in 2009.

This caused a problem in the most recent Harris case. It seems that “sustained” internal charges against officers automatically convert to “unsustained” status upon “administrative closure” of a disciplinary case, per a 2009 Memorandum of Understanding between the police department and the officers’ union. The prosecution argued in the 2012 trial that Mr. Harris’ defense attorney had no right to cross-examine Detective Massey about the overtime records because only sustained misconduct could be used as impeachment evidence.

The trial court accepted the prosecution’s argument, but the appeals court later rejected it. The “right to cross-examine Det. Massey about his falsification of time sheets did not evaporate simply because the previously ‘sustained’ administrative action subsequently became ‘unsustained’ by virtue of the ‘administrative closure’ and/or a memorandum of understanding between the Baltimore Police Department and the Fraternal Order of Police,” the appellate judge wrote in reversing Harris’ 2012 conviction.

It’s still unclear today what “administrative closure” means to the Baltimore Police Department or why it signed the MOU with the FOP. What is clear is that issues within the police department and Baltimore City state’s attorney’s office that could adversely affect the prosecution of crimes in the city are largely hidden from public view until there is a mistrial or a reversed conviction, which happens all too frequently.

[Published as an op-ed by The Baltimore Sun on October 1, 2015. I did not post the piece until May 31, 2016; the date of posting listed above was backdated to place the piece on the blog in the order it was written.]